Shiddappa and Subhas vs The State of Karnataka

Jawad Rahim, J.—The convicted accused is in appeal against conviction for the offence punishable u/s 366 read with Section 34 of I.P.C. and consequent sentence imposed on him by the learned Fast Track Court Judge in S.C. No. 119/2006. Heard Sri. D.M. Manjunath, learned counsel for the appellants and Sri. V.M. Banakar, learned Addl. SPP for the State. Perused the records in supplementation thereto. It reveals the following substance of allegations, on the basis of which appellants were arraigned, tried and convicted:--

A] PW-1/Prema Manjappa Uppar lodged a report at Kalaghatagi Police Station seeking action against the appellants alleging, having lost her husband while living in Channagiri, she had migrated to Dastikoppa village in Kalaghatagi Taluk and started business of running a Tea-stall with the assistance of her brother/Annappa Rameshappa Uppar. While she was so doing the business, the appellants were frequent visitors to consume tea. She entertained them as customers and their visit became frequent. However, they befriended her brother/Annappa and lured him into some business proposition. Believing them in good faith, he gave them Rs. 70,000/- to start transport business, but they defrauded him. When Annappa demanded repayment of amount, they avoided him and postponed, promising every time they would repay the amount.

B] It is alleged, on 07.04.2005 in the evening, they visited her Tea-stall and told her that they had arranged money to be repaid and asked for her brother. Since, her brother was not in the Tea-stall, they told her to accompany them so as to settle the matter. On that pretext, they took her in a Tempo to Hubli and from there, they took her to Railway station. They gave her tea to consume and asked her to board the train. No sooner she consumed the tea, she became drowsy and slept. She woke up only next day and found she was in a railway station of a big city. On query, they told her it was Mumbai and after some time, they took her in a Taxi to a house. After gaining entry, they spoke to a woman and asked her to wait for ten minutes and left the place. She waited there for a long time, after which one of the woman took her inside a room and made her to sit and only then she realised she was sold to a Brothel by the appellants. She could not escape, but had to stay there being a stranger to the place.

C] It is alleged, the occupants of the house did not talk to her and she also could not communicate with them as she knew only Kannada and not Marathi or Hindi. However, she found a woman by name Suma from Karnataka who spoke Kannada and with her assistance, she called up her cousin brother/Ganesh in Shivamogga and her brother Annappa. Both came to Mumbai and rescued her. She lodged a report 15 months after 07.04.2005, which was registered in Crime No. 142/2006 and during investigation, the S.H.O. sent a Head- Constable/PW-2 to Mumbai for verifying about her allegations, who confirmed she was confined in a Brothel. It resulted in filing of the final report, indicting the appellants for principal charge punishable un der Section 366 of I.P.C.

D] Appellants came to be arrested, but they put up the defence of denial simpliciter. In the trial that ensued, the learned prosecutor examined in all seven witnesses, among whom heavy reliance is placed on the testimony of the complainant--P.W. 1/Prema Manjappa Uppar, PW-2/Annappa Rameshappa Uppar-her brother, PW-4/Suresh B. Savanur and PW-7/Basavaraj M. Allapur. Prosecution has also relied on six documents.

Learned trial Judge analysing the evidence opined the evidence established the charge and convicted them by the impugned judgment imposing punishment of rigorous imprisonment for a period of ten years and fine of Rs. 50,000/- each. Assailing it, the appellants/accused are in appeal.

Learned counsel for appellants, Sri. D.M. Manjunath, has teased out the evidence brought on record to show except for PW-1/Prema the prosecutrix and PW-7/investigating officer, no incriminating aspects are brought on record through the testimony of other witnesses. With regard to evidence of PW-1/Prema Uppar, he would submit in Ex. P-1/complaint, she had sought action against the appellants on the ground they had lured her while she was in her Tea-stall to accompany them on the pretext of giving the amount they were due to her brother. She accompanied them as requested, but after reaching Hubli, she questioned them why they brought her to Railway-station. He submits that thereafter, they traveled in train and reached Mumbai. According to her version, she was taken in a Taxi to a house where there were women and later, she found them to be the keepers of Brothel. He submits that complainant herself has stated within 2 or 3 days, she came in contact with one Suma--a woman from Karnataka and through her mobile, she telephoned her cousin brother/Ganesh and brother/Annappa, who later rescued her. But, the report was lodged belatedly at the jurisdictional police station fifteen months later.

He submits, the version in the complaint has changed in her deposition as PW-1. She has improved her version to say after being left in the house soon after reaching Mumbai, she was taken to another Brothel and sold there, where she had to live with some men. He submits there is no statement in her evidence that any physical restrain on her movement was imposed or there was any threat or duress preventing her movements. He submits non-filing of complaint for fifteen months has not been explained by her. Even her dramatic appearance to lodge report after fifteen months is unexplained. He submits the version given by her about her escape from the Brothel is not consistent. In her evidence she would state, one day she managed to go out and noticing the missed call of her brother, met them whereas in the cross-examination, she would state that on the pretext of going to the hospital for treatment, she left and met her brother and joined.

On this point, he would submit, there is a prevarication in her statement. In her complaint she did not mention whom she had contacted, whether it was Ganesh or Annappa. In the examination-in-chief, she would say she had contacted her brother/Annappa. In the cross-examination, she would say she contacted Ganesh. When Annappa was examined, he does not reveal when he received the call from complainant and how he rescued her in Mumbai. He would further submit Annappa''s evidence cannot be used because on tendering his evidence in examination-in-chief, he was cross-examined only for a short period. Later, he remained absent and did not appear. Consequently, his statement in examination-in-chief has not stood the test of cross-examination and is therefore, not admissible to be used by the prosecution.

As regards PW-3/Vivekanand V. Hongal--the Head Constable, who claims he was deputed by the investigating officer to go to Mumbai along with the complainant for enquiry and investigation about the place she claims that she was confined. He has stated that he met the Brothel owner-Shanthi and even after ascertaining that complainant was detained there, Shanthi has not been arraigned as accused nor she was summoned to be cited as witness. Proof regarding his deputation to go to Mumbai, proof about his travel and proof about questioning her, are not documented and he would submit though he proclaimed in cross-examination such a record is made in Station Diary, it is not produced.

As regards investigation officer''s evidence is concerned, he would submit he has merely received the report, arrested the appellants and filed the final report only on the strength of ocular testimony, after collecting the material evidence about the alleged kidnapping and to compel her to prostitution-an offence punishable u/s 366 of I.P.C. in short, his contention is the evidence on record through PW-1 also falls short of legal proof to record conviction as erroneously done by the trial court. He therefore, seeks reversal.

Learned Addl. SPP, Sri. V.M. Banakar, supported the judgment on the ground that the sole testimony of the prosecutrix is sufficient when it comes to her illegal detention in Mumbai, restraining and compulsion to indulge in prostitution. He submits such crimes are committed in secrecy and no direct material would be available. He, therefore, seeks rejection of the appeal and confirmation of conviction.

All contentions have received my serious consideration and I have re-appreciated the evidence on record, as it is a statutory appeal provided to the convicted accused.

The alleged incident is said to have occurred on 07.04.2005. According to one version, the appellants approached the complainant around 2.30 p.m. and second version at 4.00 p.m. and 3rd version is 5.00 p.m. Even if we exclude this, it is material to note the complaint/Ex.P-1 filed is brief, cryptic and does not reveal what transpired for fifteen months, till the date of filing of the report. The complainant has narrated about her being taken from Tea-stall by the appellants in a Tempo to Hubli and therefrom to the Railway station. At the Railway station, accused are alleged to have given tea laced with sedatives which she consumed and thereafter, she boarded a train and slept. Such a statement is to allege, the appellants had laced her tea with some drugs, consequent to which, she slept and woke up on the next day and found herself to be at a big Railway station of a big city i.e., Mumbai.

Sri. D.M. Manjunath is right in pointing out to the fact that during cross-examination, she changed her version to say that she drank tea at the bus stand and not at the railway station. He is also right in pointing out that, after leaving her Tea-stall, she has gone in a vehicle to Hubli. From there, to Railway station and both these places are public places. According to her, she suspected the intention of appellants but has raised no alarm or sought help. After reaching Mumbai, she claims she asked the appellants as to why they brought her to Mumbai, but has done nothing to seek any help. It is also her case that from Mumbai Railway station, they took her by Taxi to a place where there were women and appellants left the place. It could be seen within three days of stay in that place, she came in contact with Suma-a woman from Karnataka and through her mobile, she telephoned her brother/Annappa. That is what she says in her complaint, whereas the version in examination-in-chief is, from the said place she was taken to a brothel and sold there, but what transpired during her stay for about fifteen months in that place is not revealed in the complaint or in the deposition during trial. It is also material to note that sometime after lodging the report against the appellants, she was arrested during the raid in a place of ill-repute in Channagiri for indulging in immoral traffic, which fact she has clearly admitted in her cross-examination done on behalf of the appellants. If we consider the sequence of events as it is told by her or as reported by her in the complaint and through her evidence, all along from Hubli, she has gone to Mumbai, stayed in the house for few days, then in a brothel and then she claims to have escaped. She has not alleged that during this period, she was subjected to torture, sexual exploitation or for that matter any restrain was employed on her movements. She has also not revealed what transpired for fifteen months till she lodged the complaint.

As far as her report is concerned, according to her, she telephoned to Ganesh, informed the brother and they reached Mumbai. As rightly urged by learned counsel Sri. D.M. Manjunath, there is no material on record to show how she was taken from Mumbai to be brought to Channagiri. Annappa-her brother who claims to have played a pivotal role but has also revealed nothing. In the circumstances, considering the evidence on record tendered by her, it would only show either she has gone voluntarily with the appellants or even if they had induced her initially, during the rest of the period, she did nothing to seek any help, which creates a serious doubt about the truth of the statement.

The conduct of complainant will also be important and keeping that in mind, we have to analyse the evidence. It is also on record that she had migrated from Channagiri to a place called Dastikoppa and on her own, she had started a Teahouse and was running it, of course supported by her brother to some extent. That clearly shows that she was a woman of independent character and capable of managing her affairs. If that be so, it is difficult to believe that she has been so easily duped or mislead to travel from Hubli to Mumbai and then to be sold it, a Brothel house, as alleged.

Be that as it may. The evidence does not clinchingly establish that the appellants had kidnapped her and kept her in confinement to be used for prostitution, which is the main ingredient of an offence punishable u/s 366 of I.P.C.

Prosecution''s evidence through PW-3/Head Constable would have been of some assistance to prosecution, but that witness also has caused sufficient dent in the prosecution''s case. Though he says, he went and met Shanthi-the Brothel owner and asked her about the presence of complainant in that Brothel house, nothing is brought on record to show that he made such a visit. Shanthi could have been the best witness, who has not been secured by the prosecution and that has also lost credence. Ganesh, who is cited as witness to whom the complainant claims she had informed about alleged kidnapping and whereabouts to seek his help to be rescued, is not cited a witness and has not been examined during trial and that evidence is also lost. Considering the evidence in entirety, I am satisfied the conviction as recorded by the trial court, is not supported by any legal evidence. In the result, the conviction of the appellants for an offence punishable u/s 366 of I.P.C. is not sustainable.

Accordingly, the appeal is allowed. The conviction of the appellants is set aside. They are acquitted of the charges leveled against them. The bail bonds and sureties executed by the appellants are ordered to be cancelled.